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05/21/97 COMMONWEALTH PENNSYLVANIA v. VINCENT

May 21, 1997

COMMONWEALTH OF PENNSYLVANIA
v.
VINCENT ZAMBELLI, APPELLANT



Appeal from the JUDGMENT OF SENTENCE. July 6, 1995. In the Court of Common Pleas, Criminal Division. Lehigh County, No. 75-SA/1994. Before REIBMAN, J.

Before. Cavanaugh, J., Tamilia, J., and Cercone, P.j.e. Opinion BY Cavanaugh, J.

The opinion of the court was delivered by: Cavanaugh

OPINION BY CAVANAUGH, J.:

FILED MAY 21 1991

This is an appeal from the judgment of sentence entered by The Honorable Edward D. Reibman of the Court of Common Pleas of Lehigh County. For the following reasons, we affirm.

The relevant facts supported by the record are as follows On December 16, 1993, Lynn McDevitt and Kimberly Fried were in the parking lot or the Circuit City located in Whitehall, Pennsylvania when they heard a "screeching" noise. Upon hearing this noise, Ms. McDevitt looked to her left and saw appellant walking alongside of a van with an object in his hand, between his two fingers. At this time, she stated to Ms. Fried, "did you see what he just did? He scratched that van." The two women then followed appellant into the store in order to identify him. They informed the store Clerk of the events that they had just witnessed, whereupon the two women and the clerk went outside to check if the van was indeed scratched. After noting a scratch on the vehicle, the store clerk called the police.

Appellant was convicted of summary criminal mischief and was ordered to pay a fine of $100 and costs of prosecution. He now raises the following issues for our review:

1. Did the trial court commit reversible error by denying the appellant's motion for a demurrer at the close of the Commonwealth's case when the Commonwealth had not provided testimony that the alleged actions of the appellant were without the consent of the owner of the subject van or that the van was even damaged that night; and

2. Did the trial court commit reversible error by holding, as a matter of law, that the Commonwealth had sufficiently proven every element of the crime charged. *fn1

Appellant first contends that the statute defining Criminal mischief requires the Commonwealth to establish that any tampering with the tangible property of another was done without the consent of the owner. Under the Crimes Code, a person is guilty of criminal mischief if he "intentionally or recklessly tampers with tangible property of another so as to endanger person or property." 18 Pa.C.S.A. § 3304(a)(2).

Initially, we note that where language of a statute is clear and unambiguous, it must be given effect in accordance with its plain and common meaning. 1 Pa.C.S. 1921(b); Commonwealth v. Burnsworth, 543 Pa. 18, 24, 669 A.2d 883, 886 (1995); Commonwealth v. Hagan, 539 Pa. 609, 615, 654 A.2d 541, 544 (1995). When considering the plain and Common meaning of section 3304(a)(2), we find no language requiring the Commonwealth to prove lack of permission by the owner of the subject property.

Our inquiry, however, does not end here. A review of our caselaw reveals that the question posed by appellant is one of first impression in this Commonwealth. Other jurisdictions, however, have addressed this issue. Although we are not bound by such decisions, they may provide guidance for our resolution of this novel issue.

In People v. Battle, 202 A.D.2d 1045, 609 N.Y.S.2d 716 (1994), the Supreme Court of New York considered the identical issue raised herein when interpreting their criminal mischief statute. In that case, the defendant was convicted of burglary in the second degree and criminal mischief in the fourth degree for gaining entrance to a tavern by breaking a window and then stealing money from the register. Defendant argued that his convictions lacked sufficient evidence because the owner of the tavern did not testify that he did not give defendant permission to enter the tavern. The Court rejected defendant's argument and held that there is no such requirement that the owner of the burglarized premises testify that he did not give the defendant consent to enter. Rather evidence of entry in the early morning hours by breaking a window, the acts committed inside the tavern in addition to the tavern manager's testimony (as opposed to the owner) that defendant was not given permission to enter the tavern was sufficient proof to conclude that defendant was guilty of criminal mischief. See also In the Matter of Kevin B., 128 A.D.2d 63, 514 N.Y.S.2d 971 (1987), aff'd, 71 N.Y.2d 835, 527 N.Y.S.2d 734, 522 N.E.2d 1032 (1988) (where the Supreme Court of New York held that the owner's lack of consent could be inferred from the circumstances surrounding the incident).

Texas courts, however, have consistently held to the contrary. In Vantil v. Texas, 884 S.W.2d 212 (1994), the defendant was convicted of criminal mischief for removing glass and damaging the rear window of another's truck. Defendant appealed raising as error that the evidence was legally and factually insufficient to support a finding that any damage was done without the effective consent of the owner because the specific issue of consent was never addressed at trial. The Court of Appeals of Texas agreed and found that demonstrating the act in question was committed without the effective consent of the owner is an essential element of criminal mischief. See also Kotlar v. Texas, 706 S.W.2d 697 (1986) (stating that in order to prove the offense of criminal mischief, ...


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